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Tuesday, June 3, 2014

Barnhizer: Rat Time in Law Schools and the Legal Profession

David Barnhizer (Cleveland State), Of Rat Time and Terminators:

RatsAbout twenty years ago Canadian scientists used a community of rats living in a glass cage to determine the effects of population growth within a finite system. As long as the rat population remained relatively low and resources were sufficient, the rats behaved well. But rats breed rapidly. As the population inside the closed system grew but the total food available stayed relatively constant, the per capita resources shrank. The rats exhibited increasingly aggressive behavior, including savagery and cannibalism. Eventually the population fell to a level that once again allowed the rat version of civility to emerge. When rat time hits and the population of a finite system begins to exceed the resources needed for basic sustenance, it is silly to expect rats -- or lawyers -- to behave civilly. When the rat population reaches extremely high levels, mother rats had better lock their doors and hide the little rats.

A version of rat time is being created within the legal profession as law schools pump 40,000 graduates a year into a saturated system. Understanding our present condition as a period of rat time can help us diagnose the problems of the legal profession, identify the future responsibilities of law schools and the profession, and create more effective solutions than the bandaids that have been proposed or applied thus far. This is particularly important because lawyers and law schools have lost their way. They are afraid to address their most troubling problems and to take the principled actions necessary for meaningful reform.

http://taxprof.typepad.com/taxprof_blog/2014/06/barnhizer-rat-time-.html

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Comments

I was writing a medium-length critique of this piece, but the auto-refresh on this site "ate" my comment as I was copying and pasting from the article in another tab. Annoying. But I'll leave it at this: Barnhizer calls the MacCrate Report "recent." It came out in 1992, which means it is older than a plurality of current 1L's. That's fairly emblematic of the quality of the analysis. Lawyers have become greedy! But no discussion of the unparalleled growth of law school tuition over the last generation or two, which has outpaced pretty much every other good or commodity in America in that timeframe, including health care. Law students have unrealistic expectations of earnings! But no discussion of the ten years or so where basically every law school claimed something like "95% employment at graduation at $160,000 average salary!!!" Etc, etc,.

Posted by: Unemployed Northeastern | Jun 3, 2014 12:37:22 PM

It's interesting how many of the problems with the current state of legal education and practice are reflected in this 20 year-old piece. Particularly depressing is the call for increased funding to law schools so as to create alternate learning methods such as Inns of Court and clinics. That funding came, in the form of increased tuition, but few of the concerns the article raises have been meaningfully addressed.

Posted by: Former Editor | Jun 3, 2014 12:43:12 PM

Unemployed Northeastern, considering that this article came out in 1995, I think we can excuse it discussing a 1992 report and not being prescient about law school behavior in the intervening decades.

Posted by: Former Editor | Jun 3, 2014 2:23:58 PM

Funny how people have been saying the same thing for almost 20 years.

Posted by: HTA | Jun 3, 2014 3:22:37 PM

Yeah, Northeastern, I wrote it twenty years ago and tried to sound a warning in a Journal of general circulation. "Deaf ears" eh? But if you are interested in comments following this piece, please look at the following material. There is more but that would provide a start.

David R. Barnhizer, Redesigning the American Law School, 2010 Michigan State Law Review 249 (Summer 2010)

David Barnhizer. 2014. "Survival Strategies for "Ordinary" Law Schools" The SelectedWorks of David Barnhizer
Available at: http://works.bepress.com/david_barnhizer/89

David Barnhizer. 2014. "Self-Interest and Sinecure: Why Law School can’t be “Fixed” from within" The SelectedWorks of David Barnhizer
Available at: http://works.bepress.com/david_barnhizer/88

David R. Barnhizer, The Revolution in American Law Schools, 37 Cleveland State Law Review 227 (1989)

David Barnhizer. 2014. "Law School Enrollments and Adaptive Strategies" The SelectedWorks of David Barnhizer
Available at: http://works.bepress.com/david_barnhizer/92

David R. Barnhizer, The Purposes of the University in the First Quarter of the Twenty-first Century, 22 Seton Hall Law Review 1124 (1992)

Posted by: David | Jun 5, 2014 4:00:24 PM

David,

My apologies. I did not realize that you wrote this piece in 1995, as I did not see/read the date of publishing in the document itself and assumed that it was newly-written given that 1) 99% of TaxProf's posts are covering new events/reports/studies/laws/etc and 2) that I recall your surname from other contemporary writings - I do believe I've read "Self-Interest and Sinecure" and "Survival Strategies."

Posted by: Unemployed Northeastern | Jun 5, 2014 5:42:01 PM

Thanks for the apology. You might like the "Redesigning the American Law School" piece in Michigan State. It tracks your concerns about debt, disappearing jobs, heedless law schools etc.

Posted by: David | Jun 6, 2014 8:24:42 AM

David, I am that rarest of creatures: an Internet poster who can admit fallibility. I may have read the "Redesigning" piece; it seems somewhat familiar. But I pretty much read all day every day - academic studies, legal education stuff, higher education stuff, stuff from the Western Canon, major contemporary works of nonfiction (history, economics, physics, sociology, etc). It all kinda blurs together after awhile. Such is the luxury of inescapable long-term unemployment.

Posted by: Unemployed Northeastern | Jun 6, 2014 10:18:09 AM

Here are two particularly odious pieces:


"Many of these people will not be able to practice law in the traditional sense but will apply their legal skills and knowledge to other work. What they have learned in law school may be productive and useful in areas distinct from law practice."

The old 'versatile law degree' combined with 'ignore the massive amount of money we got from you'.

"This means that the apparent glut of lawyers is not necessarily bad, except for lawyers. It will make many lawyers more competitive, more efficient, and simply-better. It will push down the price of legal services, and push up the quality. There will be shakeout and downsizing; unless law firms adapt the ways they do business, many will go the way of the dinosaur and the American steel industry. The less competitive lawyers may suffer, but many of the consumers of legal services will benefit from the process."

19 years later, and we haven't seen the light at the end of the tunnel yet.

Posted by: Barry | Jun 6, 2014 12:12:11 PM

That is indeed "odious" and I even wrote them. The problem is that somehow the legal profession has been pretty much price resistant in terms of what should have happened in any really competitive situation. But the rigidity of the ABA control on law schools, law schools' monopoly over the "rites of passage" to bar admission and the resulting ability to charge a very heavy "freight" for attendance has really messed up the competitive dynamics. There is an enormous unmet need for legal services but the law graduates over the past decade and a half have been forced to carry such a heavy debt load that the prices still have not come down as we might expect in a truly competitive market. Since educational debt is almost impossible to discharge and now considerably above many law graduates' earnings capability as the system now stands the downward price pressures are not helping the people who go to law school. What they are doing is increasing the emergence and expansion of competitive alternatives such as non-lawyer computer "legal" systems/paralegal/and access to other professional markets in ways that are further undermining the ability of law graduates to make decent livings. It will only get worse.

As to the "other" things a law degree and legal education make possible they do exist but are not predictable. They are also being supplanted by the emergence of the MBA degree, CPAs, real estate, insurance, various forms of counseling and aggressive marketing in professions that are operating on the margins of what we might have thought were the domains of legal services or at least a mixed set of disciplines. Frankly, the arrogance and convenient ignorance of self-satisfied law schools have created a situation that for some is essentially suicidal.

Posted by: David | Jun 6, 2014 3:16:13 PM

David: "As to the "other" things a law degree and legal education make possible they do exist but are not predictable. "

Aside from the fact that the strongest advocates of this idea can't provide actual backing, there's the fact that (a) a JD hurts in getting many, many different jobs and (b) a JD costs from $100K- $250K. As somebody said in a book, you can do 1,000 things with a JD, but you can do 999 of them without a JD.

Posted by: Barry | Jun 18, 2014 7:04:15 AM